Italian and EU Divorce Law

Across much of the European Union, marriages between couples of different nationalities, are on the rise. In addition, the number of married couples living as expats in another EU country is increasing. Unfortunately, this means that international separations and divorces are becoming more common.

Obviously, people don’t enter into married life thinking about where the best location for a divorce would be; married couples are unlikely to be interested in thinking about this while they remain happy together, and couples may not be able to agree on the appropriate jurisdiction if they are about to be or are already separated. However, where couples choose to divorce can have a major impact on both parties’ financial health, so getting it right is crucial.

A failing marriage usually includes one party who is deeply traumatized by what is happening; finding it very difficult to face the future. Hard though it may be, this initial period is precisely the one in which decisive action must be taken. Delays could result in a disastrous outcome.

Divorce is an emotional topic; not easy to tackle in an article, but given the recent changes in Italian divorce law, I would like to take opportunity to highlight a few relevant points on current Italian and EU legislation regarding the subject.

Changes to Italian Divorce Law

Italy has just cut the time it takes to get a divorce from three years to as little as six months. The change is part of Prime Minister Matteo Renzi’s efforts to reduce Italian bureaucracy. The new Italian “quickie divorce law”, which the lower house approved on April 22nd 2015, came in to effect on May 26th. The law cuts the time of divorce to six months in uncontested cases and a year in contested cases.

While the new law still retains a two-step process – separation and divorce – there are three important changes:

In the case of separazione consensuale – consensual separation – requested by both partners, the period of legal separation is now six months. After the six-month separation, which begins once the couple has filed an application for separation in court, the couple may file for divorce.

In the case of separazione giudiziale – judicial separation – only one partner is requesting a divorce, or the couple contest issues such as child custody, division of assets (including property) or alimony arrangements, the parties have to wait 12 months to file for divorce following a court application for separation. If the procedure of separation is still pending following the 12-month period, perhaps for example because parties cannot agree on financial and other aspects of the separation, each party will be entitled to file for divorce. In this case, the processes for separation and divorce will be merged and handled by the judge appointed to rule over the judicial separation.

The new law is applicable to separation cases that are currently pending. So, those who have already filed for separation will benefit from shorter divorce procedure times.

The European Union Divorce Law

The EU Divorce Law Pact or Rome III Regulation aims at implementing enhanced cooperation in the area of the law applicable to divorce and legal separation. Essentially, this EU divorce law allows expat couples in Italy – and mixed marriage couples, where one partner is Italian and the other not – to choose which country’s laws would apply should they divorce.

They can either choose the divorce laws of Italy, or they can choose the country where the couple previously lived or the country of their nationality. The decision of which country’s law will apply, needs to be made before divorce proceedings begin.

The Rome III Regulation was adopted by 15 countries including Italy. The UK opted out – so for example, a married German couple, living as expats in the UK cannot apply this rule. However, an English couple married in the UK who for example, then live in Italy for three years before one partner moves to Spain, would be able to ask Italian or Spanish courts to apply English law to the divorce.

If a couple does not stipulate an applicable country law, divorce procedures will be governed by Italian courts and legislation if a couple is ordinarily resident in Italy or one partner is resident in Italy and starts proceedings here. However, if the other partner, for example, returns to the UK for six months or more and starts proceedings there before Italian proceedings begin, UK courts and law will govern the divorce.

Another aspect to consider in the choice of divorce law is matrimonial regimes. UK courts often split assets owned by a couple 50/50, whereas Italian courts look more closely at what belongs to whom. This is because when they get married, couples in Italy may choose between a matrimonial regime of shared ownership, comunione dei beni or separate ownership separazione dei beni of their worldly goods in the event of divorce or death.

Unless otherwise stipulated in an agreement, which can be made at the start of a marriage or at any time during a marriage, comunione dei beni is regarded as the default matrimonial regime. Expat couples married elsewhere but resident in Italy are regarded as being married according to this regime. In the comunione dei beni regime, property acquired by the couple during their marriage, whether individually or together, forms part of the couples’ shared ownership. In the event of a divorce, these assets will be split 50/50.

However, there are exceptions. For example, property acquired by a partner prior to the marriage, or property acquired after the marriage as a gift or an inheritance would not be split in the case of a divorce. The choice of matrimonial regimes can therefore have an important impact on choice of applicable law.

Consider the case of an English couple who married in the UK 12 years ago. Since then, the wife has inherited a significant sum of money as well as a house in Italy from her parents. 4 years ago, the husband persuaded the wife that they should move to Italy to live in the wife’s inherited property. Then, after 12 months, the husband moved back to the UK where he issued divorce proceedings. The UK court gave the husband 50% of all the couples’ assets. The Italian courts would have treated the inherited assets as belonging solely to the wife.

Each case is different. There are many issues that need to be taken in to account and at a very stressful time. Which applicable law to choose, requires very careful thought and consideration. An Experienced lawyer will be familiar with cross-border cases, and the complexities which make these divorces so difficult.

Please note, any statement made in this article is intended to be a general practical introductory explanation only and not formal legal advice. This firm accepts no liability or any responsibility for any statement made.